The ὅρος ἤτοι ἐτυμολογία of testamentum and the problem of sources in the Paraphrase of Theophilus

Abstract

Among the problems long debated by the scholars of the Greek Paraphrase of Justinian’s Institutes, the most interesting was the one concerning the legal sources used by Theophilus; they indeed are not identical with Justinian’s Institutes. Furthermore, a point of view prevails that claims the Antecessor – during the editing of his Paraphrase – could also have taken into consideration Gaius’ Institutes. My speech is based on a close analysis of a well-known passage (Theoph. 2,10 pr. concerning the definition or etymology, ὅρος ἤτοι ἐτυμολογία, of testamentum) and it aims to re-examine how Theophilus managed his sources. The content of the principium is far wider and better articulated compared to the corresponding passage from Justinian’s Institutes. The Antecessor carries some consideration on ‘ὅρος ἤτοι ἐτυμολογία’ of the term testamentum autonomously compared not only to the ῥητόν, but also to Gaius’ Institutes. A question indeed arises: Is it therefore reasonable to suppose that Theophilus has drawn inspiration from legal sources other than the Institutes of Justinian and Gaius (see e.g. D. 1,1,1 pr.)? And furthermore, did the Antecessor also use literary sources, such as the Attic Nights of Aulus Gellius (in particular, Gell. 7,12,4)? Certainly, these issues don’t exhaust the topic’s extent. Therefore, this hypothesis of investigation could be a starting point for a more complex study of the sources problem in the Paraphrase of Theophilus, with an essential reference to the teaching activity of the Antecessor.